Separated filing for Chp 7

[nader54]

Hi all, I married my wife over a decade ago. We could not get pregnant and eventually she decided to move to another state in 2012. We did not divorce or separate because I was depressed and she didn't want to make things worse. Then I lost my job in early 2014 and decided to leave the country to spend time my family overseas. I am a US citizen. We finally decided to file for separation, so she filed in her state and I flew there to take care of our finances and to be present at the court. We tried to separate our joint credit cards, some banks agreed to remove her name from the card and some didn't. I opened up a couple of new credit cards and transferred the debts from our joint cards to my own credit cards to keep her off those debts. Even though most of the debts were mine, she agreed to pay some of those. We divided those debts at court and agreed to pay our share. I left the country soon after the court date and I have not used my credit cards ever since we separated officially. Bear in mind that I applied for those new credit cards a few weeks prior to our court date because I needed to list them in our separation documents.

It has been one year since we officially separated and I have been paying the minimum due because I have not been able to get a job. Starting December 2016, I will have no money to continue paying. So I flew back to the US to file for bankruptcy, not knowing anything better. I have no assets whatsoever, no retirement, no mortgage, nothing but credit card debts. I talked to a BK attorney and I have to fill out the application etc. What makes me worried is whether or not my ex would get involved in this? We have documents that show her and I have been living separately since 2012, but we made it official later in 2015. Will the credit card companies go after her? Will the court make her responsible for the debts that are solely under my name? We both live in states that run with common property law, but again, we haven't lived together for over 4 years.

In addition, we have one CC that is joint but I agreed to pay at the court. If I file for bankruptcy, do the creditor go after her? She is a grad student and doesn't make much money, so I wonder what is going to happen.

My mind is exploding and I don't know what is the right thing to do. I just don't want to harm my ex more than I already have and she has been generous to pay my debts. Any advice?

[LadyInTheRed]

Creditors should not go after your wife for debt that is in your name only. As for the joint account, they probably will not do anything as long as you keep making payments. If you make online payments, you will have to find a different way to pay after you file BK, because your online access will likely be blocked. The creditor also might not send statements. If you default, the creditor will look to your wife for payment, after your BK is discharged or the automatic stay is otherwise lifted. You could reaffirm the debt, but I wouldn't.

Do you plan to stay in the US? If you plan to go back oversees and not return, you might want to consider defaulting on everything other than the joint account. But, don't do that without talking to an attorney about the possible consequences, some of which may depend on what country you will live in.

[nader54]

Thank you LadyInTheread for your reply! To make sure I understood, creditors won't go after her for credit cards that I've had for several years are under my name -- even though I am filing from a common property state?

And yes, I am only here to take care of the bankruptcy because I thought this is my best option. I'll leave the US as soon as this is taken care of. So, your suggestion is to leave and not pay instead of filing for bankruptcy? Do you mind sharing more info with me or refer me to a website? Also, what kind of an attorney would be able to help me? -- since my current attorney is a bankruptcy attorney and I would assume she'd like to file for BK.
Thank you again.

[LadyInTheRed]

I misunderstood. You mean community property. I thought you meant common law property, which would be a non-community property state. I now see from your profile that you are in California. I did a quick bit of research about separation and community property and it appears that anything acquired after the date of your physical separation (i.e., when you stopped living together, not when you legally separated) is separate property. Everything acquired while you were married and living together is community property. The same would go for debt, with some exceptions. A creditor could come after your wife for debt incurred between your marriage and your separation. As a practical matter, my understanding is that that does not happen because the creditor would have to prove that the debt was community debt. Here is an article about liability for a spouse's debt, be sure to read the second page. https://www.nolo.com/legal-encyclope...bts-29572.html

As far as leaving the country, I only suggested you consider it, because I've seen the suggestion made to others in the past who didn't plan to stay in the U.S. or were thinking of coming back to file BK, just like you did. So, I don't know how or if it will work and I don't have any resources. Try googling "leaving the country to avoid debt". Also, ask your bankruptcy attorney and see what she says. If she won't give you honest advice because she is afraid of losing you as a client, you should find another attorney anyway. You may also need to talk to an international attorney.

[nader54]

Awesome! Thank you LadeyInTheRed! This is really helpful